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son,

reg. 18.

may avoid the deed that he hath sealed by which in reality is not his, but another's." the duress of imprisonment of his wife or Hartford F. Ins. Co. v. Kirkpatrick, 111

...' But a son shall avoid his deed Ala. 456, 466, 20 So. 651. by duress to his father. M. 7 Ja. B. per In Glass v. Haygood, 133 Ala. 489, 31 Coke. The husband shall avoid a deed by So. 973, the rule of duress was declared to duress to his wife. M. 7 Ja. B. per Coke." apply when the possession of one's goods is 1 Rolle, Abr. 687, pls. 4-6.

unlawfully held against him, and he has Lord Bacon declared: "So, if a man such an important, urgent, and immediate menace me, that he will imprison or hurt occasion for their possession and use as in body my father or my child except I cannot be subserved by a resort to courts make unto him an obligation, I shall avoid to recover them; he may avoid any contract this duress, as well as if the duress had he enters into with the wrongdoer in order been to mine own person.” Bacon, Maxims, to regain the possession of his goods.

We thus see that both ancient and modern The same law is explicitly laid down with authorities agree that the doctrine of duress out question by the author of Bacon's or threat of punishment to husband or to Abridgment, and by Mr. Dane and by Mr. wife, or to parent or to child, is based upon Justice McLean. Bacon, Abr. Duress, B. 5 the nearness and tenderness of the relation, Dane, Abr. 166, 375.

applying as strongly to the case of parent In McCormick Harvesting Mach. Co. v. and child as to that of husband and wife. Hamilton, 73 Wis. 486-495, 41 N. W. 727, No more powerful or restraining force can 730, where many authorities are collected, be brought to bear upon a man, to overcome the court declared: “The contract is then his will and extort from him an obligation, void by every principle of equity. It is the than the threat of great injury or punishworst species of fraud, because it attacks ment to wife or child or parent. the weakest point of human nature, and The County Court, exercising jurisdiction appeals to natural affection. What will not in equity, was correct in overruling the dea mother do to save her child from imprison murrer that the bill contained no equity, ment for crime of which he is not guilty?" and the decree is affirmed. The threat in this case was that, unless she executed a mortgage, the plaintiff would

Anderson, Ch. J., and Mayfield and cause the imprisonment of her son for a Somerville, JJ., concur. crime of which the latter was not in fact guilty. In Morse v. Woodworth, 155 Mass. 251, 29

GEORGIA SUPREME COURT. N. E. 528, it is said by the court: "It has sometimes been held that threats of im

H. H. JORDAN, Piff. in Err., prisonment, to constitute duress, must be of unlawful imprisonment. But the ques

E, C. BEECHER et al. tion is whether the threat is of imprisonment which will be unlawful in reference!

(- Ga.

84 S. E. 549.) to the conduct of the threatener who is seeking to obtain a contract by his threat. Duress criminal process to collect Imprisonment that is suffered through the

debt.

1. The law does not countenance the emexecution of a threat which was made for the purpose of forcing a guilty person to tion of debts. Where a criminal warrant is

ployment of criminal process for the collecenter into a contract may be lawful as issued and its principal object is to enagainst the authorities and the public, but force the collection of a debt due to a corunlawful as against the threatener, when poration of which the magistrate issuing considered in reference to his effort to se the warrant is the president, and the defor his private benefit processes provided fendant is imprisoned under such warrant, for the protection of the public and the a conveyance of property to the prosecuting punishment of crime. One who has over- creditor, obtained by means of such impriscome the mind and will of another for his onment, in order to secure his release, is

void. own advantage, under such circumstances,

Same is guilty of a perversion and abuse of laws

conveyance by wife.

2. Where the fears or affection of a wife which were made for another purpose, and he is in no position to claim the advantage Headnotes by EVANS, P. J. of a formal contract obtained in that way, on the ground that the rights of the parties

Note. As to contracts procured by are to be determined by their language and threats of prosecution of a relative, see their overt acts, without reference to the notes to City Nat. Bank v. Kusworm, 26

L.R.A. 48; Williamson-Halsell Frazier Co. influences which moved them. In such a

v. Ackerman, 20 L.R.A. (N.S.) 484; Ball v. case, there is no reason why one should be Ball, 37 L.R.A(N.S.) 539; and Embrey v. bound by contract obtained by force, Adams, ante, 1118.

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are worked upon through criminal pro- 1 time he bought the land that the defendants ceedings instituted against her husband, and had any claim to it, and he bought in good she is induced thereby against her will to faith. The draftsman of the deeds from convey her property, through the medium of Mr. and Mrs. Beecher testified, in behalf her husband, to her husband's creditor, to of the plaintiff, that he explained to Mrs. pay her husband's debt and obtain his release from imprisonment, there is duress as

Beecher, at the time the deeds were drawn, to her, and a purchaser from the husband's that the only way she could transfer her creditor, with notice of the wife's equity, property to her husband was by making cannot prevail in an action to recover the him a deed of gift; that she could not be land from her.

forced to make such a deed, and need not Trial - instructions.

do it unless she wanted to, to which Mrs. 3. The court's instruction is not open to Beecher replied that it was her desire to the criticism made of it

make the deed and pay her husband's debt.

He further told the defendants, at the time (February 11, 1915.)

of making the deeds, that they did not set

tle the criminal prosecution against her husRROR to the Superior Court for Coffee band, and that it could not be settled. Mrs.

E

fendant's favor in an action brought to re- that she was perfectly willing to deed this cover possession of certain land. Affirmed. property to her husband, so he could pay

his debts. Statement by Evans, P. J.:

The substance of the testimony of the H. H. Jordan brought an action against defendants was as follows: In 1908 the E. C. Beecher and Drucilla Beecher to re- husband became indebted to the Hendersoncover possession of a tract of land. In the i Powell Company for supplies, and on failabstract of title incorporated in the peti- | ing to pay in the fall of the year, the tion it appeared that the plaintiff claimed manager of that corporation sued out a wartitle by virtue of a deed from Drucilla rant before a justice of the peace, who was Beecher to E. C. Beecher, dated December the president of the corporation. He was ar16, 1908, upon a voluntary consideration, rested and put in jail. His creditors agreed and a deed from E. C. Beecher to the Hen- to his release on condition that he would derson-Powell Company, dated December 17, procure his wife to make him a deed to the 1908, and a deed from Henderson-Powell land, and he in turn execute a deed to them. Company to the plaintiff, dated August 23, Beecher promised to do this and was allowed 1911. The defendants pleaded that they to go to his home, but in a few days he sustained the relation of husband and wife, was rearrested and put in jail. Henderson, that the deed from the wife to the husband the president of the Henderson-Powell Comand his deed to the Henderson-Powell Company, told him that if he would convey this pany were obtained by duress and were property to that company in settlement of without consideration, and were given for his debt, they would release him from jail the purpose of settling a debt due by the and settle the criminal prosecution which husband to the Henderson-Powell Company, they had instituted; but if he refused to do and in settlement of a criminal prosecution it, they intended to push the prosecution, instituted by the Henderson-Powell Com- and he would probably be found guilty and pany against the husband. The evidence have to serve a term in the chain gang. He made the following case: The plaintiff informed his wife that the only way to get testified that he bought the land from the out of his trouble and settle the prosecuHenderson-Powell Company in August, 1911, tion was to give a deed to the Hendersonon a consideration of $500, which was evi- Powell Company to her land. The wife met denced by his two notes of $250 each, in- her husband in the office of the attorney dorsed by his brother-in-law, and payable of the Henderson-Powell Company, and in December, 1912 and 1913; that he did not there, in the presence of the president of pay the first note when it fell due, nor has the Henderson-Powell Company and the he paid either of them; that he is a farmer sheriff, who had the husband in custody, the by occupation; that the manager of the wife made the husband a deed upon a purHenderson-Powell Company approached him ported consideration of love and affection, to sell him the land, and informed him that and the husband executed to his creditors, it was unoccupied. He had never seen the the Henderson-Powell Company, a deed upon land, but inquired as to its value, and was a purported consideration of $275, and he told that it was worth from $1,000 to was then released at the bidding of the $1,200. In fact, the land was worth $1,500. creditor. The wife was unwilling to convey He did not inspect the land, but agreed to her land to her husband, and only did so purchase it, if the title was approved by to bring about his release from imprisonhis brother-in-law. He did not know at the ment. During the time between this trans

error:

were

action and the bringing of the suit (more | v. Sullivan, 133 Ga. 160, 134 Am. St. Rep. than three years), neither the Henderson- 199, 65 S. E. 376; Kent v. Plumb, 57 Ga. Powell Company nor the plaintiff ever re- 207; Small v. Williams, 87 Ga. 685, 13 S. turned the property for taxation, but it was E. 589; Cromer v. Evett, 11 Ga. App. 654, returned for taxation by Mrs. Beecher, and 75 S. E. 1056; Cook v. Hightower & Son, she paid the taxes on it. She and her hus. 11 Ga. App. 657, 75 S. W. 1058. band have been in possession of the land since the execution of the deeds. The jury Evans, P. J. delivered the opinion of the returned a verdict for the defendants. court:

The defendants set up two defenses. One Messrs. H. E. Oxford, Newbern & was that the deeds from the wife to the Meeks, and F. W. Dart, for plaintiff in husband and from the husband to his cred

itor were executed for the purpose of payCourts of justice will not lend their aiding the husband's creditor with the wife's to enforce an immoral or illegal contract; land, and that plaintiff acquired his deed if it be executed they will not disturb it, from the husband's creditor with notice of but leave the parties where they find them, the wife's equity. This issue was submitted

Howell v. Fountain, 3 Ga. 176, 46 Am. to the jury by the court, under instructions Dec. 415; Adams v. Barrett, 5 Ga. 404; Par- to which no exception is taken. The derott v. Baker, 82 Ga. 365, 9 S. E. 1068; fendants further defended on the ground Ellis v. Hammond, 57 Ga. 179; Garrison v. that the deeds were procured by duress, and Burns, 98 Ga. 762, 26 S, E. 471; Beard v.j in settlement of a criminal prosecution White, 120 Ga. 1019, 48 S. E. 400.

against the husband. Upon that plea the Possession of the defendants was no no- court instructed the jury that, if they should tice to the plaintiff at the time of his pur- find that the deeds from Mrs. Beecher to chase, in the face of the solemn, recorded her husband and from him to the Henderdeeds of the defendants, showing title out son-Powell Company were executed in conof themselves.

sideration that the Henderson-Powell ComMalette v. Wright, 120 Ga. 735, 48 S. E. pany not to press the criminal 229; Jay v. Whelchel, 78 Ga. 789, 3 S. E. prosecution against the husband, such deeds 906.

would be void, even as against a bona fide Messrs. L. E. Heath and C. A. Ward, purchaser. In assigning error on this infor defendants in error:

struction, no exception is taken to the A wife may avoid her contract on the court's declaration on the effect of such conground of duress, when it was extorted by veyance upon subsequent bona fide purthreat of the criminal prosecution of her chasers without notice. The criticism is husband.

that an absolute deed of conveyance is an City Nat. Bank v. Kusworm, 88 Wis. 188, executed contract, and the grantor cannot 26 L.R.A. 48, 43 Am. St. Rep. 880, 59 N. W. impeach it as a muniment of title in the 564; McCormick Harvesting Mach. Co. v. hands of the grantee or a purchaser from Hamilton, 73 Wis. 486, 41 N. W. 727. him, even though possession has not been

Defendant was not in pari delicto within yielded under it and it is not founded on a the meaning of the term, and she has a valuable consideration; that E. C. Beecher right to set up the fraud complained of in and Drucilla Beecher are estopped from tak. the evidence, and in the defendant's plead- ing advantage of their own wrong by conings.

tending that their deeds are void; that they Jones v. Dannenberg Co. 112 Ga. 426, 52 do not come into court with clean hands, L.R.A. 271, 37 S. E. 729; Taylor v. Allen, and are not entitled to a cancelation of their 112 Ga. 333, 37 S. E. 408; Exchange Nat. deeds. There can be no doubt that a conBank v. Henderson, 139 Ga. 260, 51 L.R.A. tract to stifle a criminal prosecution is il(N.S.) 549, 77 S. E. 37.

legal and opposed to public policy, and, if The deed from Drucilla Beecher to her the parties voluntarily enter into such conhusband was not a bona fide deed of gift, tract, they are in pari delicto, and neither but a colorable transaction, and the facts

a court of law nor of equity will interpose attending the execution of the deed do not to give relief to either party, but will leave take the matter out of the operation of the statute prohibiting a wife from conveying

the parties where they find them. Adams land to her husband without the approval 7. Barrett, 5 Ga. 404. It has also been deof the judge of the superior court.

cided that a deed upon an illegal consideraNational Bank v. Carlton, 96 Ga. 469, 23 tion, being an executed contract, binds the S. E. 388; Central Bank & T. Corp. v. Al- parties where the illegality does not appear mand, 135 Ga. 231, 69 S. E. 111; Blackburn in the deed, and passes to the grantee a v. Lee, 137 Ga. 266; 73 S. E. 1; Deen v. title upon which he can recover the premises Williams, 128 Ga. 265, 57 S. E. 427; Bond' from the grantor in ejectment. Parrott v.

was

Baker, 82 Ga. 364, 371, 9 S. E. 1068; Beard, against the husband. He was allowed to go v. White, 120 Ga. 1018, 48 S. E. 400. home, on his promise to procure a deed

The case presented by this record is not from his wife, and return to make his credone for the enforcement of an executed con- itor a deed. The creditor became impatient tract, but for the cancelation of deeds ex- of his return and had him rearrested and ecuted under duress of imprisonment. Our put in jail. When he and his wife signed Code declares:

deeds conveying his wife's land to his cred“The free assent of the parties being es. itor, he was in the custody of the sheriff, sential to a valid contract, duress, either of who then released him at the creditor's bidimprisonment or by threats, or other acts, ding. by which the free will of the party is re- Though a person is arrested under a legal strained and his consent induced, will void warrant by a proper officer, yet, if one of the contract. Legal imprisonment, if not the objects of the arrest is thereby to enused for illegal purposes, is not duress.” force the settlement of a civil claim, such Civil Code 1910, 8 4255.

arrest is a false imprisonment, and a release “Duress," as defined by the Civil Code and conveyance of property obtained by 1910, § 4116, "consists in any illegal im- means of such arrest is void. Hackett v. prisonment, or legal imprisonment used for King, 6 Allen, 58; Watkins v. Baird, 6 Mass. an illegal purpose, or threats of bodily or 506, 4 Am. Dec. 170; Brown v. Pierce, 7 other harm, or other means amounting to Wall. 205, 215, 19 L. ed. 134, 137; Fillman or tending to coerce the will of another, and v. Ryon, 168 Pa. 484, 32 Atl. 89; Hartford actually inducing him to do an act contrary F. Ins. Co. v. Kirkpatrick, 111 Ala. 456, 20 to his free will.”

So. 651; Osborn v. Robbins, 36 N. Y. 365. In the instant case not only was the im- As has already been adverted to, where prisonment of Beecher used to coerce a deed parties enter into an agreement seeking to from his wife to himself and from him to stifle a criminal prosecution, the parties are his creditor, but that imprisonment, accord- in pari delicto, and the law refuses to aid ing to the uncontroverted testimony, was either of them against the other. That rule upon a warrant issued by his creditor, who applies where the nature of the undertak

a magistrate. Its principal purpose ings and stipulation of each, if considered was to accomplish a payment of the hus- by themselves alone, would show the parties band's debt with the wife's land, the value equally in fault; but where the incidental of which was largely in excess of the debt. circumstances, such as imposition, oppresThis court has said that it was improper sion, duress, undue influence, taking advanfor a magistrate to give a warrant to the tage of necessities or weaknesses, and the prosecutor to execute, although the prose- like, are used as a means of inducing the cutor be a constable, and that it was doubt- party to enter into the agreement, the law ful whether such constable had the right to will not deem the party influenced by such deputize another person to assist him in the circumstances as being in pari delicto, so as execution of the warrant. Davis v. State, to deny him any relief from the contract 79 Ga. 767, 4 S. E. 318. Surely it is against infected with illegality. 2 Pom. Eq. Jur. public policy for a magistrate to issue a § 942. Where the fears or affections of a warrant for an alleged offense against him- wife are worked upon through criminal proself, and for the purpose of having the war- i ceedings instituted against her husband, and rant used as a means of collecting a debt she is induced thereby against her will to in which he is beneficially interested. convey her property to pay his debt and Richardson v. Welcome, 6 Cush. 331; Jordan obtain his release from prison, there is v. Henry, 22 Minn. 245. Says Mr. Justice duress as to her, even though the debt may Clifford, in Baker v. Morton, 12 Wall. 150, be valid, and the prosecution be for a crime 158, 20 L, ed. 262, 264: “Actual violence which has in fact been committed by the is not necessary to constitute duress even husband. Giddings v. Iowa Sav. Bank, 104 at common law, as understood in the parent Iowa, 676, 74 N. W. 21; Eadie v. Slimmon, country, because consent is the very essence 26 N. Y. 9, 82 Am. Dec. 395; Harper v. of a contract, and if there be compulsion Harper, 85 Ky. 160, 7 Am. St. Rep. 583, 3

W. law that moral compulsion, such as that N. Y. 606, 6 L.R.A. 491, 15 Am. St. Rep. produced by threats to take life or to inflict 447, 23 N. E. 7; Southern Exp. Co. v. Dufgreat bodily harm, as well as that produced fey, 48 Ga. 358. In the last-named case a by imprisonment, is sufficient to destroy mother made a deed to procure the release free agency, without which there can be no of her son from arrest under a criminal contract, as in that state of the case there warrant. The purported consideration of is no consent."

the deed was claimed to represent money So far as the record discloses, there was embezzled by the son. It was in proof that no foundation for the charge preferred | the son was under arrest and in chains, and the grantee in the deed agreed to release the, him does not extinguish the debts under son and stop the proceedings, though he constitutional and statutory provisions expressly refused to settle the prosecu- making the property of a married woman tion, stating that he could not control the her separate estate, which she may transfer,

and giving her the power to carry on busipublic officials. The son was released and

ness and sue and be sued. the prosecution stopped, and it was held that the deed from the mother was illegal

(Wood and Hart, JJ., dissent.) and void. In the opinion McCay, J., said: “If the agreement to release a man under

(December 21, 1914.) arrest and stop that proceeding is not an attempt to suppress a prosecution, we are

| ROSS APPEALS from a decree of the at a loss to put a state of facts that does make a case within the rule. If this arrest dismissing the complaint and cross com

Chancery Court for Garland County was illegal, if the agents of the express plaint in an action for the cancelation of a company had this boy in their own custody, and could let him go or not at their pleas

mortgage. Reversed.

The facts are stated in the opinion. ure, then this deed was the clear result of

Messrs. ctor & Sawyer, for defendduress, since it was made to release the

ant: child of the grantor from illegal imprisonment. A man's child stands, under the law, erty and contractual rights of parties to

Where, by virtue of statutes, all propin the same situation as himself in such

a marriage are preserved, debts due before cases." It follows that, if the deeds from Mrs. and vice versa, are not extinguished by the

marriage from the husband to the wife, Beecher to her husband and from him to

subsequent marriage. his creditor were obtained in the manner as claimed by the defendants, they would be App. 163; Flenner v. Flenner, 29 Ind.

21 Cyc. 1276; Clark v. Clark, 49 Ill. void as against the grantee, or a purchaser 564; Power v. Lester, 23 N. Y. 527, affrom him with notice.

The instruction to the jury is not criti- firming 17 How. Pr. 413; Keyser v. Keyser, cized on the ground that such deeds would Stockwell, 76°vt. 176, 56 Atl. 661.

1 N. Y. City Cit. Rep. 405; Spencer v. be treated as void instruments, so as to

Messrs. Davies & Ledgerwood, for affect subsequent bona fide purchasers with

plaintiff : out notice. The evidence was without con

The debt was extinguished by the marflict that there was no change in the possession of the land as a result of the riage, and the husband could not foreclose execution of the deeds to the Henderson- by the marriage, it was extinguished by

his mortgage. If the debt was entinguished Powell Company, and that the defendants virtue of the contract of marriage, and not were in possession of the land at the time

by operation of law. the plaintiff bought from that company. As

Williams v. Rivercomb, 31 Ark. 294; to the possession affecting the plaintiff with notice, see Civil Code 1910, $$ 4528, 4530; Am. St. Rep. 892, 52 s. W. 291; Stewart,

Schilling v. Darmody, 102 Tenn. 439, 73 Austin v. Southern Home Bldg. & L. Asso. Husb. & W. s 44; Govan v. Moore, 30 Ark. 122 Ga. 439, 50 S. E. 382; Kent v. Simpson, 667; Jackson v. Williams, 92 Ark. 486, 25 142 Ga. 49, 82 S. E. 440.

L.R.A. (N.S.) 840, 123 S. W. 751; Kies Judgment affirmed.

Note. Effect of intermarriage beAll the Justices concur, except Fish, Ch. tween debtor and creditor upon the J., absent.

indebtedness,

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This question is covered in the note to MacKeown v. Lacey, 21 L.R.A. (N.S.) 683.

But one case in point, in addition to MCKIE ARKANSAS SUPREME COURT,

v. McKIE, has been found that was decided

since that note. In Delval v. Gagnon, 213 LUELLA F. McKIE

Mass. 203, 99 N. E. 1095, it was held, upon

the authority of MacKeown v. Lacey and JAMES S. McKIE.

Crosby v. Clem, 209 Mass. 193, 95 N. E.

297, that a balance upon a loan made by a (- Ark. —, 172 S. W. 891.)

married woman to her husband before their

marriage can be recovered by her assignee. Husband and wife marriage as ex- The Crosby Case is not in point, as the

tinguishment of debt from one to the debt was contracted after marriage, and other.

it seems to have been cited more to the point The marriage to the mortgagee of one that the wife could make a legal assignment who has executed a mortgage on her real of the claim against her husband. estate to secure repayment of a loan from

J. W. M.

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